Thursday, January 29, 2015

Corporal Punishment Update

From the November 2011 E-Block.

***

Some years ago, we wrote the following in response to a Skeptic (it was Farrell Till, for those interested):
Finally, there is this, focussing on Deut. 25:11-12 --

If two men are fighting and the wife of one of them comes to
rescue her husband from his assailant, and she reaches out and seizes
him by his private parts, you shall cut off her hand. Show her no pity.

One critic connects this to the laws regarding crushed testicles
in the previous laws; but as we have seen, there is neither social nor
linguistic basis for this argument. On the other hand, this is also
said:

"Today, if a woman's husband should be attacked, shoe would
probably know that a swift way to rescue him would be to administer a
quick, hard blow between the attacker's legs, but that's today. back in
the Twilight Zone of biblical times, a woman dared not do this unless
she wanted to run the risk of being known the rest of her life as
Lefty."
The
Skeptics may not think so, but they do not live in an era when having
heirs is particularly important: Ancient people did not have Social
Security to keep them afloat, nor did they have government programs;
there was no Meals on Wheels to deliver food to the elderly and infirm.
If you wanted to survive, you needed heirs; there was no other way.

This law should be understood in the context of what precedes it, for it makes the matter quite clear:

Deut. 25:5-9 If brothers are living together and one of them
dies without a son, his widow must not marry outside the family. Her
husband's brother shall take her and marry her and fulfill the duty of a
brother-in-law to her. The first son she bears shall carry on the name
of the dead brother so that his name will not be blotted out from
Israel. However, if a man does not want to marry his brother's wife, she
shall go to the elders at the town gate and say, "My husband's brother
refuses to carry on his brother's name in Israel. He will not fulfill
the duty of a brother-in-law to me." Then the elders of his town shall
summon him and talk to him. If he persists in saying, "I do not want to
marry her," his brother's widow shall go up to him in the presence of
the elders, take off one of his sandals, spit in his face and say, "This
is what is done to the man who will not build up his brother's family
line."

Neither a man nor a woman of this period would want to live
without heirs. This loss of a hand is hardly to be construed as a severe
punishment for someone who kept you from having descendants. It has
nothing to do with the rule of Deut. 23:1, since that involved
self-inflicted damage with a cultic purpose. It has everything to do
with destroying a couple's means of support beyond a time when they
could fend for themselves properly.

It is also probable, given the context of the previous verses,
that the "brothers" fighting here are actually brothers in a physical
sense, and are fighting over the very issue of Deut. 7-10. If this is
the case, then the wife's actions are even more in sense with the
context, and that would mean that this is not just any old fight -- and,
it is probable in that case that a rescue attempt is not forbidden in
principle where a continuation of heirs is not at stake.

And thus is it appropos that a hand be lost -- for it matches
equally the loss of ability to provide descendants to be one's "hands"
in old age. That it is thought of as equitable under the "eye for an
eye" rubric is demonstrated by the fact that the phrase "your eye shall
have no pity" also introduces the lex talionis laws in Deut. 19:21.

Furthermore, if our critic still thinks this rule unreasonable,
he should compare it to this Middle Assyrian parallel: "If a woman has
crushed a man's testicle in an affray, one of her fingers shall be cut
off." That's just for one testicle. There's a second rule if both
testicles are crushed, and the punishment is that "both" of something of
the woman's will be cut off -- we don't know what, since the text is
damaged, but you can take a guess if you want. - Crai.Dt, 315.

We should point out, too, that the Assyrians apparently didn't
differentiate between a "rescue" situation for the husband and a woman
fighting a man that is beating up on her. If the Israelite law were
truly "anti-woman" it would prescribe the punishment under any
circumstances. As it is, it seems clear that a kick to the gonads was
NOT forbidden when, say, a man attacked and raped a woman.
Our article today will be an update on the above, as derived from William Webb's excellent Corporal Punishment in the Bible.
I am pleased to have noted that Webb's own explanation for this passage
is the same as my own. However, he also adds some very helpful
comparisons to other ANE laws showing that by comparison, the OT is a
significant advance on other ANE codes with respect to bodily mutilation
as a punishment. Here we will present a summary of Webb's findings and
our own commentary.

Sumeria. Only two laws prescribe mutilation, but this may
be because we lack a great deal of evidence; we have failed to recover
an indeterminate amount of legal material from Sumer. The two laws
however are bad enough as is: a peg driven through the mouth for real
estate theft, and a woman's teeth being smashed with bricks for making
an offensive comment to a man.

Compared to the above, there is little or no sense of
equitibility in these punishments. In the first case, there isn't even a
clear relationship between the body part affected and the crime. One
might also wonder if there is gender inequality in the second -- does a
man who makes an offensive comment to a woman get a brick mouth? Perhaps
not; though the same charge might be raised against Deuteronomy: What
of a man who hits a woman in her "reproductive zone"? There may be an
equitable punishment, assumed to be an extension of the didactic
expression of the code. Or, it may be that there is no expectation of a
woman being in a comparable situation (eg, a fight); or, it may just be
expected that the man can produce heirs through some other means (eg,
polygamy).

Egypt. Here, there was no effort made to connect the
bodily part to the offense either; losing nose and ears was a standard
for several crimes ranging from "encroaching on field boundaries" to
"repeated offense of libel." Sometimes added was "50 open wounds" as
well, with no location specified (though with that many, you could
probably cover the whole gamut).

Babylon. These guys had more variety, but there was again
often no connection between the body part and the offense. In some cases
there seems to be a connection, especially where the hand was involved
in some action. But the offenses were often quite trivial, even in the
ANE:

If an adopted child disowns their parents, his tongue was cut out. The same child who ran away would lose an eye.

A slave who hits a free person loses their hand. So does a physician whose patient in surgery either dies or goes blind.

Did you break a contract? Expect to lose your nose -- and as a
bonus, you get half your head shaved and parade around the city with
your arms outstretched.

Assyria. More of the same -- some. There are also a few that do at least make the direct body-offense connection. Samples:

If a man touches a woman in a sexual advance, he loses one of his fingers -- plus his lower lip if he stole a kiss.

A prostitute who wears a veil in public gets 50 blows and a hot tar shower.

Did you steal a sheep? Expect 100 blows, your hair torn out,
and a month in the king's service. And you have to replace the sheep.

A eunuch or palace attendant who eavesdrops on a palace woman loses his ears.

It doesn't take much to see that compared to these codes, the OT
makes virtually no use of mutilation as a punishment -- and the single
example ties the act of mutilation directly to the nature of the crime.
(I should note that this takes for granted that the passage is rightly
interpreted; there is also a minority reading that understands it to
refer metaphorically to shaving of the pubic area -- a shameful
punishment, not a physical one.) Webb notes that in proportion to other
codes, we'd expect at least 20 OT laws prescribing mutilation as a
punishment -- yet we have only one. The superiority of the OT law in
this context -- that of the world in which it was written -- is
manifest.

4 comments:

JP, even though it doesn't relate to this post, will you take a look at a blog post from a year ago on the "jesus blog"? It is written by Ken Olson and contains the claim that Eusebius interpolated the Testamonium Flavium. Google "jesus blog and you will find it in the entries for august 2013.

Actually on that issue I hand off the reins to Christopher Price, who wrote the chapter on Josephus for Shattering the Christ Myth. I plan to update that soon and expect he'll have more to say about Olson, as he did in STCM.